1988 PLP 945 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal, by leave of the Court, is directed against the judgment dated 24‑11‑1984, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Appeal No.47 of 1981 of the appellants against the judgment of the Additional Sessions Judge, Attock dated 18‑1‑1981 was dismissed and the convictions and sentences of the appellants Nos.1, 2 and 4 were maintained and the death sentence awarded to appellant No.3 was converted to life imprisonment, by the impugned judgment. The prosecution story in brief is that Ghulam Muhammad deceased was a nephew of Fazal Hussain accused appellant No.4. Both the families resided at Dhok Gang. Mst.Bilquis daughter of Fazal Hussain was married to Ghulam Muhammad (deceased) and in exchange the sister of Ghulam Muhammad (deceased) was married to Muhammad Arif appellant No.1. Ghulam Muhammad (deceased) divorced his wife Mst.Bilquis and remarried Mst.Shahin Akhtar but he also divorced her and contracted a third marriage with Mst.Pathani (deceased) daughter of Amir Khan (deceased) resident of Dhok Shahpasand. Since Ghulam Muhammad (deceased) and Muhammad Arif appellant No.1 were collaterals, they jointly owned lands at the same village and irrigated their lands through a jointly owned artesian well. Sometime prior to the occurrence: Muhammad Arif appellant No.1 stopped the water supply line passing; through his land to the land of Ghulam Muhammad (deceased). The other motive introduced by the defence and to some extent admitted by the P.Ws., is that a piece of land adjacent to the Dhok belonging to, Ghulam Muhammad (deceased` was in cultivating possession of Fazal liussain appellant No.4 and on contracting third marriage of Ghulam Muhammad (deceased) with Mst. Pathani (deceased), he alienated it besides other land, in her favour and her father was pressing his son-in‑law to oust Fazal Hussain from the land and hand over its possession to him. On stopping of flow of water, Ghulam Muhammad (deceased) reacted and forbade Muhammad Arif appellant No.1 from tethering his cattle in the Deohri belonging to Ghulam Muhammad (deceased) but Muhammad Arif did not refrain. As a result, on 28‑11‑1979, at about midday Ghulam Muhammad (deceased) started blocking the northern door of his "deohri" with the help of his wife Mst. Pathani (deceased) and his in‑laws, while they were raising the wall across the door, Muhammad Arif appellant No.:, accompanied by his co‑accused, went up the roof of the Deohri and threatened to pull it down. Accused Muhammad Arif, Hayat Mohammad, Amir Sultan, Razzaq and Jehan Khan were all armed with hatchets while Fazal Hussain and Sher Gut were armed with Sotis. In order to stop them from doing so, Ghulam. Muhammad (deceased) empty handed climbed up through a broken wall to the roof. The moment he reached there, Muhammad Arif appellant No.1 attacked him with hatchet. Seeing this, his wife Mst. Pathani (deceased) followed by his mother‑in‑law Mst.Hayat Bano (deceased) and a relation Amir Khan (deceased) and besides them Ghulam Rasool, Meher Khan (P.W.18), 4Mst.Ses Bano (P.W.20) and Mian Murid (P.W.19) went up one after the other to rescue him and the accused went on attacking every one who came in their way. In that process, 8 persons were injured. Ghulam Muhammad (deceased) and Mst. Hayat Bano (deceased) received fatal injuries and died on the spot, while Amir Khan son of Sher Muhammad was brought down in seriously injured condition and he breathed his last in the courtyard of the house of Ghulam Muhammad. Mst.Pathani and other injured P.Ws. were taken to Talagang hospital from where Mst.Pathani was shifted to DHQ hospital Attock, where she died after 8th day of the occurrence. Mehr Khan (P.W.18) who was also injured, went to the Police Station Talagang, where ASI Muhammad Azram (P.W.22) recorded his statement (Ex.PDD) and registered: the case. P.W Muhammad Azram prepared the injury statement of t4he complainant and referred him to the hospital for medical examination. P.W. Muhammad Azram took up the investigation of the case and left for the spot. He found the dead bodies of Ghulam Muhammad and Mst.Hayat Bano lying on the roof of the house while that of Amir Khan in the courtyard of the house of Ghulam Muhammad on a cot. He prepared injury statements Exs.PFF, PGG and PHH of the dead bodies and inquest reports Exs.PFF/1, PGG/1 and PHH/1, respectively He collected blood‑stained earth from various places and made separate parcels of it. He recorded the statement of Mst.Ses Begum (P.W.20). Since she was injured, he prepared her injury statement (Ex.PJJ). He sent the dead bodies to the local mortuary for post‑mortem examination. On the same day he arrested Muhammad Arif accused. Since, he was injured, he prepared his injury statement (Ex.PKK) and seized his blood‑stained clothes vide memo. (Ex.PT). Muhammad Azram (P.W.22) recorded the statements of P.Ws. Ghulam Rasul and Mian Murid in the Talagang hospital, where they were admitted in injured condition. As per opinion of the lady doctor Mst Pathani (deceased) was so injured that she was not fit to make her statement therefore, she could not record her statement. On 28‑11‑1979 all the 5 accused were arrested by S.I. Amir Khan and on 10‑12‑1979 accused Muhammad Razzaq, Hayat Muhammad and Jehan Khan got recovered their hatchets from an artesian well, while Fazal Hussain and Shergul got recovered their Soties from their respective residential Kothas. He deposited the aforementioned weapons with the MHC. Muhammad Azram after recording the statements of the P.Ws handed over the investigation to S.I. Amir Khan. On 17‑12‑1979 S.I. Amir Khan recovered blood‑stained hatchet (Ex.P.l6) at the instance of appellant No.1 from his residential Kotha and seized it vide memo. (EX.PU), after making it into a sealed parcel, handed over to the MHC for keeping in safe custody. Amir Sultan accused who was an employee of the Naval Force, at Karachi was arrested by F.C. Muhammad Banaras from there on a warrant of arrest and brought to Police Station Talagang. On 28‑11‑1979 at 2 p.m. Lady Doctor Hamida Khatun, M.O. (P.W.1) examined Mst.Pathani and found an incised wound on her head. Ali the injuries except injury‑ No.4 were dangerous to life. As her condition was serious she was referred to the DHQ Hospital Attock. The same Lady Dr. also examined Mst.Ses Begum (P.W.20) and found 5 simple injuries on her person. On the same day at 1.30 p.m. Doctor Nisar Ahmad (P.W.2) medically examined Fazal Hussain accused and found a lacerated scalp‑deed wound on his right parietal region which was caused by a blunt weapon and by X‑ray it was declared grievous. The same day at 1.50 p.m. the said doctor also examined Jehan Khan accused and found 4 simple injuries on his person. On the same day at 2.10 p.m. he examined Shergul accused and found two simple injuries on his person. He then examined the same day at 2.45 p. m. Mian Murid (P.W.19) and found 3 simple injuries on his person. The same day at 4 p. m. he examined Mehr Khan (P. W.18) and found 3 lacerated wounds and 3 abrasions on various parts of his body which were caused by blunt weapon. The doctor also examined Muhammad Arif accused at 4.15 p.m. and found 4 simple injuries on his person. On 29‑11‑1979 the same doctor conducted the autopsy on the dead body of Ghulam Muhammad (deceased). On external examination he found 4 injuries on the dead body. Injuries Nos.3 and 4 were caused by blunt weapon and injuries Nos.1 and 2 were caused by sharp‑edged weapon and found fatal. The doctor opined that the death of the deceased was caused due to injuries Nos.1 and 2, which were sufficient in the ordinary course of nature to cause death. The same day at 11 a.m. the said doctor performed the post‑mortem of Mst.Hayat Bano (deceased). On external examination he found an incised wound 12. x 1 c. m. deep into the head after cutting the underlying bone on the back of head towards the right side and on internal examination he found occipital bone cut through and through with membranes of brain, under injury No.1 besides posterior ends of both cerebral hemisphere. In the opinion of the doctor her death was caused due to shock, haemorrhage and injury to brain as a result of the said injury, which was sufficient in the ordinary course of nature to cause death. The injury was ante-mortem and caused by a sharp‑edged weapon. The doctor also opined that the death occurred within a few minutes to an hour and post‑mortem conducted within 12 to 24 hours. The same day the said doctor performed post-mortem of Amir Khan (deceased) and found 4 injuries on the dead body. In the opinion of the doctor the death happened due to shock, haemorrhage caused by injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature. He opined that the injuries were caused with sharp‑edged weapon and were ante‑mortem. Doctor F.M. Khan (P.W.17) M.O. DHQ hospital Attock, deposed that Mst.Pathani (deceased) died on 6‑12‑1979 at 4 a.m. He informed the police the same date at 10.30 a.m. He did the autopsy on the dead body of the deceased. On external examination he found 4 incised sharp‑edged weapon injuries and 6 blunt weapon injuries on the dead body. In his opinion, the death occurred due to shock, haemorrhage, as a result of injuries‑Nos.1 to 3 which were sufficient in the ordinary course of nature to cause death individually as well as collectively. The probable time of injuries was 8 days and between death and post‑mortem about 6 hours. In support of its case regarding the guilt of the accused, the prosecution .has produced reliable ocular evidence, consisting of the statements of injured eye‑witnesses‑, coupled with medical evidence and evidence of motive and recoveries of weapons of offence. The learned trial Judge‑ on examination of the evidence and record formed the opinion that 3 accused namely, Amir Sultan, Hayat Muhammad and Razzak, have been falsely implicated. Although the prosecution witnesses have shown their participation in the occurrence and ascribed specific role to each of them yet the fact, remains that they had no injury on their persons and the possibility of their false implication could not be excluded and acquitted them of all the charges on benefit of doubt. And as regards the remaining 4 accused, namely, Muhammad, Arif, Jehan Khan, Shergul and Fazal Hussain, their presence at the time of occurrence and their participation therein emanating from their injuries, is an admitted fact. Since their plea of self‑defence has not been accepted they were found guilty of the charges against them beyond any reasonable doubt. They were convicted under section 302 read with section 34, P.P.C. on all the 4 counts for committing the murder of Ghulam Muhammad, Mst.Hayat Bano, Mst.Pathani and Amir Khan. Similarly, they were convicted under section 324, P.P.C. for causing simple hurt with sharp‑edged weapons to Ghulam Rasul P.W. and under section 325/34, P.P.C. for causing grievous hurt with blunt weapon and sentenced Muhammad Arif, Jehan Khan and Shergul to death on each of the four counts and a fine of Rs.5,000 each on each count or in default to undergo further R .I. for 2 years on each count. The learned trial Judge also sentenced Fazal Hussain accused to imprisonment for life and a fine of Rs.5,000 on each of the 4 counts or in default to undergo further R.I. for 2 years on each count. In addition thereto; all the four accused were sentenced to 1 year R.I. each and a fine of Rs.500 or in .default to further undergo 3 months R.I. each under section 324/34, P.P.C. and 2 years R.I. and a fine of Rs.1,000 or in default 6 months R.I. each under section 325/34, P.P.C. Both the sentences of imprisonment under sections 324 and 325, P.P.C. shall run concurrently, vide his judgment dated 18‑1‑1981. The appellants filed appeal in the Lahore High Court, Rawalpindi Bench Rawalpindi. The complainant party also filed a Criminal Revision No.56 of 1981 against the acquitted accused. The learned High Court held that acquitted accused namely. Amir Sultan, Hayat Muhammad and Razzaq were not at all injured and hence the possibility of their false implication could not be ruled out. As far as the appeal of the appellants is concerned the High Court held that the prosecution has successfully substantiated its case against the present appellants and they were rightly convicted by the trial Court and confirmed the death sentences awarded to Muhammad Arif and Jehan Khan appellants and commuted the death sentence of Shergul appellant to life imprisonment and dismissed the revision and appeal With the above modification in the sentence of Shergul appellant, vide its judgment dated 24‑11‑1984. Leave was granted to the appellants with a view, to ensure that the benefit of. exercise of right of defence of property and self‑defence or any, other legal benefits arising out of sudden fight have rightly been denied in accordance with the well‑accepted principles of safe administration of criminal justice. We have heard the learned counsel for the parties. The learned counsel for the appellants contended that it was a case of self‑defence which some of the, injured accused. exercised when Fazal. Hussain accused was attacked by the complainant party and injured him and in that process many other persons, who were attracted to the scene of occurrence and involved in the incidents were injured from both the sides and 4 persons unfortunately lost their lives. He argued that it was a case of sudden fight between the parties over the controversy of blocking the northern door of the "deohri" by Ghulam Muhammad (deceased) and in that event every one was individually liable for his own act and that the case fell, within the ambit of Section 304 P.P.C. and the accused may be dealt with accordingly. He further contended that the marriage between Mst.Bilquis, daughter of Fazal Hussain accused, and Ghulam Muhammad (deceased) was dissolved since long and father of the latter had died since long when the deceased was a boy and Muhammad Arif accused to whom the sister of the deceased was married, had been looking after the person and property of the deceased and. even got him remarried to one Mst.Shahin Akhtar. The divorce of Mst.Bilquis could not be assumed as motive for the crime. Furthermore; there is no reliable evidence on record to show that Muhammad Arif appellant and his brothers had stopped the water supply to the land of Ghulam Muhammad (deceased) from jointly owned artesian well and in revolt he had stopped Muhammad Arif, appellant from tethering his cattle in his Deohri. But what actually happened was that on contracting the 3rd marriage with Mst.Pathani (deceased) Ghulam Muhammad (deceased) had alienated his entire land in her favour including a piece of land situated in front of the Deohri allegedly in possession of Fazal Hussain accused as a tenant and since his (deceased's) father‑in‑law was persuading him to get back the same land from Fazal Hussain accused to which he was not willing, this gave rise to a dispute between the parties and Ghulam Muhammad (deceased) collected his relations in order to pressurise Fazal Hussain accused for vacating the said piece of land. The learned counsel also contended that Ghulam Muhammad (deceased) started raising a wall across the northern door of the Deohri which had fallen to the share of Muhammad Arif's wife as part of the inheritance of her father and which had been in possession of accused Muhammad Arif for many years. Fazal Hussain accused out of fear and to avoid quarrel went over the roof and asked his nephew Ghulam Muhammad (deceased) to desist from doing so but the latter got flared up and with the help of his relations attacked the former. His alarm attracted his relations and in the fight many persons were injured from both sides and 4 of them died from the complainant side. On a careful perusal of evidence on record, we find that they prosecution in our view, has succeeded in proving its case beyond any shadow of doubt against the appellants, as they acted with immense, cruelty by killing 4 empty handed persons, including 2 innocent women and attempting the lives of 4 P. Ws. , after trespassing over the house of Ghulam Muhammad (deceased). The trial Court while accepting the testimony of the witnesses, fairly appreciated the evidence, came to a correct conclusion and similarly, the Appellate Court also on appreciation of the evidence, held, the defence plea improbable as it failed to explain as to how the prosecution witnesses suffered injuries at the hands of the appellants. The Courts below having applied their mind upon a fair scrutiny of evidence rejected the defence plea. For the foregoing reasons, the view taken by the learned High Court is unexceptional and this appeal is dismissed accordingly. M.Y.H./M‑387/S Appeal dismissed.